Yost v. Alderson

1. Chancery Practice. Setting aside order pro confesso. Case in judgment. A. was summoned to answer a bill filed by Y-, “at a chancery court to beholden on the second Monday of July, 1878.” That day was a rule day, the-regular term commencing on the 9th of the ensuing September. On the second Monday of August the complainant took an order pro confesso, the defendant having failed to answer. On the next day the defendant’s solicitor went to the clerk’s office to get the bill, in order to answer it, but the office was closed. On the day next after this he got into the clerk’s office, discovered the order pro confesso, and thereupon went to the complainant’s solicitor and asked him to set it aside, promising to answer on that day. This request was refused, and on Friday of the same week the defendant made a motion to set aside the order and for leave to file his answer. In support of this motion he filed his answer, containing a full denial of the equities of the bill, and also an affidavit to the effect that when the summons was served ho had just returned from an absence of six months, and was much engaged with business which had accumulated during his absence; that he was then much excited, in common with the rest of the communitj7, by news of yellow fever in New Orleans, and fears that it would reach Jackson; and that, owing to these causes and the fact that the summons required him to appear at a term of the court, and not at a rule-day, he did not observe that "the day for appearance was a rule-day, instead of the day of the commencement of the next term, and in this way neglected to answer before the order pro confesso was taken. The chancellor sustained the motion. Held, that his action was correct. 2. Same. Neglect in conduct of suit. How treated. Where a party neglects, in the mere conduct of a suit, to conform to the statutory rules of procedure, and the consequences of his omission do not operate injuriously against others, he should not on that account alone be deprived of the means and opportunity of maintaining or defending his rights. The condonation of such neglect by the judge, in the exercise of his lawful discretion, can do no harm except to deprive the adverse party of an advantage which he has secured through that neglect. The object of the institution of courts is to administer justice according to law, and lawsuits are for that purpose alone. Rules of procedure regulating the conduct of business in courts are intended solely to facilitate the ends of legal justice. They are necessary, and their due observance should be enforced; but when the nonobservance is in a trivial matter, working'no injury to the adverse party, and not materially impeding the due progress of the cause, the fault should he corrected and the authority of the court maintained rather by the imposition of costs and the use of other disciplinary agencies than by depriving the party in fault of the opportunity of a fair trial. 3. Deed. Attached as not having been executed. Effect of acknowledgment. Case in ¡judgment. A hill was filed by T. to have declared void a deed purporting to have been executed by herself and her husband, deceased, upon the ground that she never executed it, and that the property therein described was the homestead of herself and minor children. The defendant answered, denying the equities of the bill. The complainant and her daughter testified that the former refused, in the presence of the justice of the peace who certified to the acknowledgment, to sign the deed or to acknowledge it. The defendant established the facts that the justice of the peace who certified the acknowledgment was a man of high character and well acquainted with his official business; that Y.’s husband paid rent for the property conveyed, during his lifetime, after the conveyance, and she knew of this; and that after his death she paid rent for the same premises for a short time, and then voluntarily surrendered them to the defendant. The bill was not filed till after the death of Y.’s husband and of the justice of the peace. The Chancery ■Court dismissed the bill. Held, that the action of the court below was well warranted by the proof.

Appeal from the Chancery Court of Hinds County. Hon. E. G. Peyton, Chancellor. The case is sufficiently stated in the opinion of the court. 1. It is settled, under the statutes of this State, that the granting or refusing of a motion to set aside a decree pro con_fesso is a matter within the sound discretion of the court. This is a sound judicial discretion; the court cannot act arbitrarily. Pittman v. McClellan, 55 Miss. 299 ; Kelly v. Brooks, 57 Miss. 227 ; Rankin County Savings Inst. v. Gunn, MS. opinion, book J, p. 74. Sect. 1021 of the Code of 1871 is imperative that “ no pro confesso decree so taken, shall be set aside without good cause shown, by affidavit,” etc. It is apparent from the affidavit filed in support of the motion that the appellee either intentionally or forgetfully neglected to attend to this case, without even a plausible excuse therefor. Forgetfulness or neglect has been held to be no ex-ouse ; and certainly it is not such “ good cause ” as is required by the statute. Rankin County Savings Inst. v. Gunn, supra. The appellants acquired a legal advantage fairly, and the court had no right to deprive them of it on the flimsy excuse made by the appellee. But if the affidavit was a sufficient showing why the. answer was not filed, the answer contained no meritorious defence, but consisted entirely of wholesale denials by reckless sweaiing, without the defendant having any knowledge or information as to the material allegations denied. Such denials are not the meritorious defence that is required. Upon the whole, we submit that the action of the court in •setting aside the decree pro confesso was an abuse of its discretion, as “ good cause ” for such actibn .was not shown. 2. We insist that, on the facts of the case, the pretended •deed to the appellee must be held to be invalid, because (1) Mrs. Yost testifies positively ' and unequivocally that ■•she never did execute that deed; (2) Miss Matilda Yost testifies with equal clearness that on the several occasions on which her mother was asked to execute it, she positively refused ; (3) they both testify that they never knew or heard •of appellee claiming under a deed purporting to have been .signed by Mrs. Yost, until January, 1878, and this toas after Boyd’s death, when she, with astonishment, denied that, she had ever done any such thing, and proceeded very promptly to consult counsel and institute this suit to enforce her rights (in this she is fully corroborated by Chiles, the per^ •son "who first informed her of the pretended .deed) ; (4) the fact that the appellee, knowing the precariousness of his pretended title, has attempted to fortify, it by bringing up .a tax-title; (5) the rascally attempt of the appellee to induce her, after the commencement of this suit, to sign some ■contract or agreement prejudicial to her rights in this cause, ,aud which he refuses to let either her daughter or her attorney in this cause read ; and (6) that in the whole record there is not a particle of evidence, save the certificate of acknowledgment, contradicting the positive statements of both Mrs. Yost and her daughter. 1. We insist that an application to set aside a decree pro ■confesso is a matter submitted to the enlightened discretion of the court, to be exercised in view of the special circumstances of the case, regard being had to the x-easons assigned ixx the affidavit in suppox’t of the motioxx why the px’oper pleading was not filed, axxd also to the character of the defence set up in the answer presented with the motion. In Pattison v. Josselyn, 43 Miss. 373, it was held that the Chancery Court has the discretion, at the same term at which, a final decree is pronounced, for good cause, to alter, modify, or set it aside, and that this discretion continues on interlocutory orders, so long as the cause is in progress, no matter at what term, they may -have been rendered, and does not cease till the case terminates in a final decree. See also Kelly v. Brooks, 57 Miss. 225. But such discretion is not arbitrary or capricious, but regulated by the practice of the court. It was also held in Pattison v. Josselyn that, ordinarily, whatever was in the discretion of- the Chancery Court — as are many things in the progress of a cause. — cannot be assigned for error. In Pittman v. McClellan, 55 Miss. 304, this court said the practice which prevailed in the English Chancery Court, and very generally in this country, is to take off the default and open the pro confesso on terms. It is a matter of sound discretion to reverse or not, according to circumstances. These terms-are that the defendant shall paj^ costs occasioned by his default, and incident to the relief, and present his answer, so that the court may judge of it. The Chancery Court considered that “good cause” was shown why the answer was not filed on the return-day of the summons. And we submit that the defence set out in the answer is a most equitable and conclusive one. For these reasons the decree pro confesso was properly set aside. 2. The deed in question was executed 'in strict accordance with the statute relating to the conveyance of homesteads Code 1871, sect. 2143; Acts 1873, p. 78. The certificate of acknowledgment, being in the form required in such cases, estops Mrs. Yost, as a matter of law, from denying the validity of the deed, except by affirmative proof that such certificate was false or procured by fraud, and that appellee had notice of this before he accepted the deed and paid the purchase-money. Johnston v. Wallace, 53 Miss. 331. We invite special attention to the entire opinion in that case, as the court reviews its previous decisions, particularly in Stone v. Montgomery, 35 Miss. 83, and Allen v. Lenoir, 53 Miss. 321. If the appellee was induced by any act or statement on the part of Mrs. Yost to accept the deed and pay the purchase-money, she will be estopped from denying or controverting such act or statement. Staton v. Bryant, 55 Miss. 261; Davis v/Bowmar, 55 Miss. 671. If mistaken in the position that the appellants are estopped as a matter of law, we insist that they are barred of the relief prayed by the statement in the certificate of acknowledgment, treating the certificate only as the evidence of a disinterested witness of the facts therein recited. Lockhart v. Cornfield, 48 Miss. 489 ; Johnston v. Wallace, 53 Miss. 331; 1 Greenl. on Ev., sect. 15. That certificate, made by a sworn officer in the discharge of official duties, and in due form of law, stands as his deposition — as though he had been examined and cross-examined as to the facts therein stated. Kennedy v. Prior, 57 Miss. 774 ; Harmon v. Magee, 57 Miss. 415.